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MARRIAGE RIGHTS OF THE LGBTQAI+ COMMUNITY IN INDIA

Author: Tanish Singh, III year of B.A.,LL.B from Symbiosis Law School, Hyderabad.


HISTORY OF THE LGBTQAI+ COMMUNITY IN INDIA

Records in ancient India –

Homosexuality has an antiquated history in India. Old writings like Rig-Veda which goes back around 1500 BC and figures and remnants delineate sexual acts between ladies as disclosures of a feminine reality where sexuality depended on joy and ripeness. The portrayal of gay acts in the Kamasutra, the Harems of youthful males kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, confirmations of homosexuality in the Tantric customs are some chronicled confirmations of same-sex connections.



Reasons for the loss of LGBTQAI+ community’s importance and punishments for homosexual behaviour in ancient India -

Notwithstanding, these encounters began losing their importance with the emergence of Vedic Brahmanism and, later on, of British Colonialism. Giti claims that the Aryan invasion dating to 1500 B.C started to stifle homosexuality through the rising predominance of a male-controlled society. In the Manu smriti there are references to disciplines like loss of caste, overwhelming money-related fines, and strokes of the whip for gay and lesbian conduct. On account of wedded ladies, it is referenced that 'baiting of house cleaners' is to be rebuffed by shaving the ladies bare, cutting off two fingers and afterward strutting her on an ass. Manu's details of increasingly extreme disciplines for wedded ladies can propose either a wide pervasiveness of such connections among wedded ladies or a more prominent acknowledgment of these practices among unmarried ladies.



In either case, these references point to the strains in the standards of obligatory heterosexuality recommended by Brahmanical partite. Both sexual frameworks existed together, regardless of vacillations in relative restraint and opportunity, until British Colonialism when the devastation of pictures of gay expression and sexual expression by and large turned out to be progressively orderly and blatant.



Advent of British rule and its impact -

The homophobic and Victorian strict qualities regarded the showcase of bold sexual pictures as obscene and fiendish. The Western view, since the hour of Colonial expansion, has been emphatically impacted by regenerative suspicion about sexuality. These strict qualities and mentalities were thus mapped into the translation of sexual activity among colonial people which is apparent from their reactions to all types of unnatural sexual practices. The Indian mind accepted the Western good and moral thought of sexuality being pathological as opposed to the natural articulation desire, which once used to be an intrinsic piece of Indian culture.



Changes in the notion of homosexuality in the last century -

The last century saw significant changes in the notion of homosexuality. Since 1974, homosexuality stopped being viewed as strange conduct and was expelled from the classification of mental disorder. It was additionally de-condemned in various nations. From that point forward different states over the globe instituted against prejudicial or equivalent open-door laws and strategies to ensure the privileges of gays and lesbians. In 1994, South Africa turned into the principal country to constitutionally protect the privileges of lesbians and gays. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden, and New Zealand additionally have comparative laws. In 1996, the US Supreme Court requested that no state could pass enactment that oppressed gay people. In India, other than a few cases that provide the bare minimum like the National Legal Services Authority v. Union of India which resulted in the recognition of transgender people as a third gender other than that there have been a few cases but overall so far no such dynamic changes have occurred and the gay people remain victims of brutality in various structures bolstered by the state and society.


WHAT IS LGBTQAI+ MARRIAGE?

Definition of same sex marriage -

Same-sex marriage or gay marriage is a union of two individuals of similar sex or sexual orientation, commenced in a civil or religious ceremony. The entire idea of gay marriage is to build up to marriage equity, which has contrasted and differed by jurisdiction. It has gone through an entire authoritative system of changes in court decisions including marriage laws. The progressions that are in discussion depend on the established assurances of acknowledgment and balance which the current marriage laws will permit. There are records of same-sex marriage going back to the 1st century. In the modern period, same-sex marriage began being legitimized toward the start of the 21st century. Today, it is accessible in 28 nations. Moreover, Taiwan and Costa Rica are additionally going to sanction same-sex marriage.



Countries where it is recognised and/or performed -

Same-sex marriage is legitimately performed and recognized (across the country or in certain jurisdictions) in Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Taiwan, the United Kingdom, the United States, and Uruguay. Same-sex marriage is additionally due to get legitimized in Costa Rica.


Israel recognizes same-sex relationships entered into abroad, as full relationships. Moreover, the Inter-American Court of Human Rights has given a judgment that is required to facilitate recognition in a few nations in the Americas. It is relevant to refer here that in the wake of leading an investigation in the United States from the year 1999 to 2015, there was a huge decrease in the complete pace of suicides after the introduction of same-sex marriage. The acknowledgment of gay marriage is both a civil and human right. it can be even said that the most prominent supporters of gay marriage are the Civil and Human Rights organization.


The introduction of same-sex marriage (likewise called marriage equality) has shifted by locale, and happened through legislative change to marriage law, court decisions dependent on constitutional assurances of equality, the acknowledgment that it is permitted by existing marriage law, or by direct popular vote (using referendums and initiatives).


The acknowledgment of same-sex marriage is viewed as a human right and a civil right just as a political, social, and strict issue. The most unmistakable supporters of same-sex marriage are human rights and social equality organizations as well as the clinical and scientific communities, while the most prominent rivals are strict religious gatherings. Surveys reliably show persistently rising help for the recognition of same-sex marriage in all developed democracies and some developing nations.



Impact of gay marriage -

Scientific investigations show that the monetary, mental, and physical well-being of gay individuals are improved by marriage and that the offspring of same-sex guardians’ profit by being raised by wedded same-sex couples inside a marital union that is recognized by law and bolstered by cultural institutions. Social science research demonstrates that the rejection of gay people from marriage derides and welcomes open victimization against them, with research additionally denying the idea that society relies solely on the union between heterosexuals.


Same-sex marriage can give those in committed same-sex relationships with appropriate government services and make financial demands on them practically identical to that required of those in inverse sex relationships, and furthermore gives them legal protections, for example, inheritance and other rights. Popular opinions opposing homosexual marriages are that homosexuality is unnatural and unusual, that the acknowledgment of same-sex associations will advance homosexuality in the public arena, and that kids are in an ideal situation when raised by inverse sex couples. These cases are disproved by logical examinations, which show that homosexuality is a characteristic and typical variety in human sexuality, and that sexual orientation is certainly not a conscious decision. Numerous examinations have indicated that offspring of same-sex couples toll similarly just as the offspring of inverse sex couples; a few investigations have demonstrated advantages to being raised by same-sex couples.


An investigation across the country information from over the United States from January 1999 to December 2015 uncovered that the foundation of same-sex marriage is related with a noteworthy decrease in the pace of attempted suicide among kids, with the impact being concentrated among offspring of a minority sexual direction, coming about in around 134,000 fewer kids attempting suicide every year in the United States.


What are the sections preventing/prohibiting it?

The law of our land doesn't give a similar set of rights and duties to the LGBTQIA+ couples that it does to hetero wedded couples. To quote Aditya Bondyopadhyay a Delhi-based lawyer and a veteran gay rights activist -


“Such a law isn’t there in India. There are two aspects of marriage. One is the social aspect in which two consenting adults decide to go through a ritual in the presence (or not) of friends and family and treat his or her partner as a spouse. In India, post the Supreme Court verdict to decriminalise Section 377 of the Indian Penal Code, many can openly do that. However, there is a legal aspect of marriage that bestows rights and responsibilities on two people. These include, for example, property inheritance, maintenance of the spouse and so on. In heterosexual marriages, such rights and responsibilities come in a package. While an LGBTQIA+ couple can independently address such problems, there is no law in our country that can ensure their access to these rights. If you read our Special Marriage Act carefully, you will see it is meant for heterosexual couples. It doesn’t even take into account transgender people.”


Names/titles of laws prohibiting it -

India doesn't recognize same-sex marriage or civil associations. Also, it doesn't have a concise clear and unified marriage law. Each Indian citizen has the privilege to pick which civil code will apply to them dependent on their community or religion. The following constitute India's marriage laws:

  • Indian Christian Marriage Act, 1872

  • Special Marriage Act, 1954

  • Hindu Marriage Act, 1955

  • Parsi Marriage and Divorce Act, 1936

  • Anand Marriage Act, 1909

  • Muslim Personal Law (Shariat) Application Act, 1937

None of these legislated marriage acts unequivocally characterizes marriage as between a man and a lady. Neither do these legislations expressly restrict same-sex unions. However, the laws have "heteronormative underpinnings" and have been construed not to recognise same-sex unions.



Details of the uniform civil code proposed in 2017 -

Goa is the sole Indian state to have uniform marriage law. Each resident is bound to the uniform law, irrespective of their religion. However, Goa's Uniform Civil Code expressly characterizes marriage as being between individuals from the contrary sex.

Initiated in 2017, a draft of a Uniform Civil Code that would authorize same-sex marriage across the country has been proposed. [][] It addressed all the issues that this paper attempts to address and also additional issues.


It addresses the issue of marriage, which is defined as-

the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman”.


The issue of partnership and adoption Partnership has been defined as

living together of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman.”


It also provides that any two person who have been in partnership for more than two years shall have same rights and obligations towards each other as a married couple


On the issue of adoption

All married couple and couples in partnership entitled to adopt a child. Sexual orientation of the married couple or the partners not to be a bar to their right to adoption. “Non-heterosexual couples will be equally entitled to adopt a child


Then the issues or religion and estate etc. are also addressed.


This is what was said by one Keshav Suri

“Marriage equality is one of the most basic rights for a citizen and the LGBTQ+ community is still devoid of it. I was lucky that my husband is French and we could marry in France, where it is legal. But there are millions who cannot. My foundation is working towards skilling and mainstreaming people from the community. We are also getting equipped to fight for marriage equality”


Marriage equity is one of the most fundamental rights for a citizen and the LGBTQAI+ people still lack those rights. In spite of the fact that perusing down of section 377 was notable, we have only just begun to scratch the surface, marriage is as yet a fantastical dream. There have been instances where lower courts of India have granted security to some same-sex couples [][][][]. We need to move in the direction of building a more approachable and holistic culture.


While organizations are talking of support, it is the ideal opportunity for positive/constructive efforts for the LGBTQAI+ people in society from every individual. The time has come to give the LGBTQAI+ people equivalent rights – marriage equality, work opportunities for us to have the option to carry on with a life of dignity.


Conclusion

Based all in all conversation on the part of same-sex marriage that is should it be authorized or not. This is more of a religious discussion than a political one. In which the researcher has given his contentions for decriminalizing it, I at long last close by saying that homosexuality isn't an offense, it is only a path for the quest for love, an approach to accomplish sexual want or desire. The researcher is of the opinion that there exists no rational argument that can justify criminalizing homosexuality, aside from personal bigotry, which restricts the people belonging to the LGBTQA+ community from enjoying the rights and protections which hetero couples enjoy. Marriage is a symbol of duty and love. If two men or two women desire to express that love and dedication, how does that decimate or harm the goals of marriage? Isn't India expected to be the place where there is freedom and tolerance? Homosexuality isn't new nor is it against the Indian culture, it has consistently existed and with lesser indictment.


What ought to be the correct way to deal with or manage same-sex relationships, the issues are very immense and complex. There is a developing conviction that our present strategy for condemning a same-sex sexual act neither helps the gay people nor the LGBTQAI+ community in general. We need to legalize same-sex marriage so as to push ahead towards enjoying fully and completely our human rights.